The annual British Academy lecture was delivered this week by M.H. Hansen, a leading authority on Athenian democracy and the ancient Greek polis. Professor Hansen’s thesis was that Montesquieu’s doctrine of the separation of powers – the model used by the founders of the American constitution – is well past its sell-by date. This is because a) the leaders of modern ‘democracies’ have assumed powers that are normally associated with seventeenth-century absolute monarchs and b) because the prerogative of modern legislatures is regularly usurped by the judiciary.
The US Supreme Court assumed the power of judicial review as early as 1803, and every other Western democracy now has to accept that elected representatives can legislate to their hearts’ content, but laws can still be overturned by the judiciary. Although, as James Madison put it, powers were only ever separated by ‘parchment barriers’ (rather than Chinese Walls), the parchment has now become so porous that Montesquieu’s doctrine is no longer of any analytical value.
Professor Hansen’s remedy is to return to the classical concept of the ‘mixed constitution’. This originated in antiquity – the orginal typologies were the work of Aristotle and Polybios, who distinguished between rule by the one (monarchy), the few (oligarchy) and the many (democracy). Although Aristotle’s ideal was monarchy, in practice he opted for politeia (a combination of aristocracy and democracy). [This is a highly simplified version: Artistotle and Polybios differentiated between the pure and degraded versions of the three modalities and Aristotle’s own thought evolved throughout his writings.]
The doctrine of the mixed constitution was still alive in the early modern period, when English government was viewed as a compact between the monarch, the aristocracy (the House of Lords) and the people (the House of Commons). In a 1642 document, His Majesty’s Answer to the Nineteen Propositions of Parliament, Charles I (or at least his advisors) argued that the constitution of England was a ‘mixed’ one in which the ‘three estates’ of king, lords and commons were balanced together (Pocock, 1992).
How would this analysis work in modern states? In Professor Hansen’s view, modern presidents and prime ministers are best viewed as elected monarchs. Although only Congress has the power to declare war, the Iraq invasion took place purely on account of the Bush presidency. Similarly, the support of Britain and Denmark was entirely due to Tony Blair and the Danish premier, Anders Fogh Rasmussen.
In so far as a legislature can be viewed as an independent ‘power’ (a highly dubious concept in the UK, where the legislature is effectively the tool of the government), it is best seen as an aristocracy. Although American founders like John Adams described Congress as a ‘portrait in miniature’ of the entire country, in practice representatives are elected on account of ‘aristocratic’ qualities [aristo kratia: ‘the rule of the best’], such as judgment, education, public standing, charisma etc.
Even if one views elected representatives as mere tokens for the manifesto of the political party they represent, nevertheless, people would normally prefer to vote for the best token. The modern demands for full-time career politicians has given rise to a separate political class, which has little in common with the electorate, hence Professor Hansen’s description of leglislatures as an aristocratic element of the mixed constitution. Needless to say the judiciary would also fall within this category.
So what about the residual ‘democratic’ element? This is where I had difficulty following Professor Hansen’s argument, which appeared to be that the freedom of the people to determine the composition of ‘their’ legislature by choosing between competing ‘aristocrats’ in a preference election with universal suffrage was sufficient to fulfil this function. OK – given the dominance of the party ticket it used to be argued that democratic choice is best effected by voting for the party that best represents the aggregated interests/beliefs of the voter. This might well have been possible during the time of Thatcher and Kinnock, but what does this ‘choice’ mean in the postmodern landscape of ‘New’ Labour and ‘Cameron’s Conservatives’? Both parties are gunning for the swing vote and it is very hard to discern their true character (which presupposes that they have one – over and beyond the need to win elections).
Given that their membership is now down to a tiny impotent residue, parties are now subject to seizure by small cabals and there is no way of reading the runes to accurately devise what the real intentions of the dominant cabal might be. To provide just one random example, the white working class has traditionally assumed that Labour would represent their economic interests, yet this class have suffered most at the hands of a party that put the interests of employers (and low inflation) first by allowing levels of immigration with, in the words of David Blunkett, the Home Secretary at the time, “no obvious limit”.
This is not to say that the economy didn’t need large numbers of immigrants, only that the effect was to lower unskilled wages and to increase unemployment in this sector. So it is hard to see how returning Labour aristocrats over Conservative aristocrats has realised the democratic preferences of white working-class voters.
Earlier on in his talk, Professor Hansen stated that, prior to the nineteenth century, preference elections were understood to be associated with aristocracy; if it’s democracy you want then the only option is sortition (random selection by lot). When pressed during questions he acknowledged that sortition-based assemblies and citizen juries could play a valuable advisory role in modern societies (as Michael Wills acknowledges in his OK post), but fell short of advocating the chosen mechanism of the ancient world as the best way of ensuring the democratic element in a modern mixed constitution. However, given the fundamental crisis in modern democratic governance, it’s difficult to understand how merely re-describing it with a different conceptual language will help very much.